Citation Nr: 18123742 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-18 874 DATE: August 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss. 2. The Veteran’s bilateral hearing loss preexisted service was not aggravated by service. 3. The Veteran has tinnitus which is related to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.306, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 101, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from July 1976 to October 1976 and had subsequent service with the National Guard. This matter is on appeal from a September 2014 rating decision which denied service connection for bilateral hearing loss and tinnitus. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2015). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Active military service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24) (2012); 38 C.F.R. § 3.6 (a) (2017). ACDUTRA is full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA is duty other than full-time duty prescribed for Reserves. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Service connection may also be warranted on a presumptive basis for certain chronic diseases, such as sensorineural hearing loss and tinnitus, if the disease manifests to a compensable degree within one year of separation from 90 days of active service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). However, these provisions are not applicable to ACDUTRA and INACDUTRA periods. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). 1. Entitlement to service connection for bilateral hearing loss Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, organic diseases of the nervous system, including hearing loss and tinnitus, are listed among the “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran claims that he suffers bilateral hearing loss due to noise exposure from blasts and explosives during training he received while on ACDUTRA. The Veteran’s DD-214 confirms that he trained as a combat engineer. The Veteran’s February 1976 entrance examination noted that the Veteran suffered from a high frequency hearing loss upon entrance. Specifically, he was noted to have hearing thresholds of 40 decibels in the right ear and 50 decibels in the left ear at the 4000 hertz frequency. The Veteran underwent additional audiograms in 1981 and 1991 which also showed that the Veteran suffered hearing loss. Because hearing loss for VA purposes was noted at the time of enlistment, the question to be resolved here is whether such left ear hearing loss was aggravated by the Veteran’s service. See McKinney v. McDonald, 28 Vet. App. 15 (2016). That is, the question remaining is whether the preexisting hearing loss was aggravated beyond the natural progression of the condition during a period of ACDUTRA, including as a result of exposure to loud noise. See 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). Under this theory of entitlement, because this is a period of ACDUTRA, the veteran has the burden of showing that there was an increase in severity (beyond merely a flare-up) and that it was not due to the natural progress of the disease. The presumption of aggravation does not apply to claims based on periods of ACDUTRA. The Veteran attended a VA examination in September. The June 2012 VA examiner diagnosed the Appellant with sensorineural hearing loss in the frequency range of 500 to 4000 Hertz and opined that the Veteran’s hearing loss was less likely than not caused by, a result of, or aggravated by the Veteran’s service. The VA examiner noted that the Veteran served on active duty for 3 months and 6 days at basic training while in the Army National Guard. The VA examiner also noted that the Veteran worked as a combat engineer during drill duty. The Veteran was reportedly exposed to weapon fire and other noise exposure due to his civilian jobs. The VA examiner opined that as the 1981 and September 1991 subsequent audiograms did not show a significant decline in hearing. Therefore, the VA examiner opined that it is less likely than not that the Veteran’s hearing loss disability was aggravated by the Veteran’s service. The Veteran has not provided any medical evidence that his hearing loss disability increased in severity during his period of ACDUTRA. As such, although the Board may concede that the Veteran was exposed to acoustic trauma due during his basic training, there is no medical evidence to show a nexus between the acoustic trauma and any increase in severity in the Veteran’s current hearing loss disability. The Board acknowledges that the Veteran contends that his hearing loss disability was aggravated by his ACDUTRA service. There is no evidence that the Veteran is a medical professional or otherwise has the necessary skill and expertise to determine the nature and etiology of a hearing loss disability. While lay persons, such as the Veteran, are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), questions such as the severity and etiology of a hearing loss disability fall outside the realm of common knowledge of a lay person and requires specialized medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, while the Veteran’s contentions been considered, this evidence is not competent to determine the severity or etiology of the Veteran’s hearing loss disability. 2. Entitlement to service connection for tinnitus The Veteran asserts that he suffers from tinnitus due to exposure to noise exposure from blasts and explosives during training he received. At the September 2014 VA examination, the Veteran reported that he has constant ringing in his ears and that the ringing started after his first discharge in 1982. He further asserted in a written statement that the symptoms of tinnitus have been continuous since service. The Veteran’s service treatment records do not reflect any complaints in service of tinnitus. However, the Board finds that the Veteran has credibly reported his symptoms of tinnitus and his exposure to acoustic trauma during his service. The Board finds the medical evidence of record, along with the Veteran’s assertions of the symptoms he experienced during service, in the context of the demonstrated in-service acoustic trauma and a current diagnosis of tinnitus, are sufficient to place in equipoise the question of whether the Veteran’s current tinnitus was incurred in service and etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s tinnitus is related to his ACDUTRA service and the criteria for service connection for tinnitus have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel